Amended in Assembly August 6, 2013

Amended in Senate May 14, 2013

Amended in Senate April 23, 2013

Amended in Senate April 1, 2013

Senate Bill No. 380

Introduced by Senator Padilla

February 20, 2013

An act to begin delete add, repeal, and end delete add begin insert and repeal end insert Section 7908 of the Public Utilities Code, relating to communications.

LEGISLATIVE COUNSEL’S DIGEST

SB 380, as amended, Padilla. Communications: service interruptions.

Existing law provides that where a law enforcement official has probable cause to believe that a person is holding hostages and is committing a crime, or is barricaded and is resisting apprehension through the use or threatened use of force, the official may order a previously designated telephone corporation security employee to arrange to cut, reroute, or divert telephone lines, as specified.

This bill begin insert , until January 1, 2020, end insert would prohibit a governmental entity, as defined, and a provider of communications service, as defined, acting at the request of a governmental entity, from undertaking to interrupt communications service, as defined, for the purpose of protecting public safety or preventing the use of communications service for an illegal purpose, except pursuant to an order signed by a judicial officer, as defined, that makes specified findings. The bill would require the order to clearly describe the specific service to be interrupted with sufficient detail as to customer, cell sector, central office, or geographical area affected and be narrowly tailored to the specific circumstances under which the order is made, and would require that the order not interfere with more communication than is necessary to achieve the purposes of the order. The bill would allow the order to authorize an interruption of service only for as long as is reasonably necessary, require that the interruption cease once the danger that justified the interruption is abated, and require the order to specify a process to immediately serve notice on the communications service provider to cease the interruption. begin delete The bill would provide that a good faith reliance upon an order of a judicial officer or a signed statement of intent to apply for a court order, as prescribed, constitutes a complete defense for any communications service provider against any action brought as a result of the interruption of communications service as directed by that order or statement. end delete

begin delete

This

end delete

begin insert The end insert bill would authorize a governmental entity, until January 1, begin delete 2016 end delete begin insert 2020 end insert , to interrupt communications service without begin insert first obtaining end insert a court order if it reasonably determines that an extreme emergency situation exists that involves immediate danger of death begin insert or great bodily injury end insert and there is insufficient time, with due diligence, to first obtain a court order, and it complies with other specified requirements begin insert including, applying for a court order within 6 hours after the commencement of the interruption of communications service, as prescribed end insert . begin insert If the application is filed after the 6 hours, as the bill would authorize in an emergency, the application would be required to include a specified statement under penalty of perjury. Since perjury is a crime, this bill would impose a state-mandated local program by creating a new crime. Additionally, the bill would require a governmental entity to provide to the provider of communications service and the court a signed statement of intent to apply for a court order signed by an authorized official. end insert

begin insert

The bill would provide that good faith reliance upon an order of a judicial officer or a signed statement of intent to apply for a court order that the governmental entity assets meets certain requirements constitutes a complete defense for any communications service provider against any action brought as a result of the interruption of communications service as directed by that order or statement.

end insert

The bill would also find and declare that ensuring that California users of any communications service not have this service interrupted and thereby be deprived of a means to connect with the state’s 911 emergency services or be deprived of a means to engage in constitutionally protected expression, is a matter of statewide concern, and not a municipal affair, as provided.

begin insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

end insert

Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature hereby finds and declares all of
the following:

(a) Preserving the availability and openness of communications
networks is a bedrock principle of federal and state law and
essential to commerce, public safety, and democracy.

(b) With email, data transfers, videoconferencing, e-commerce,
and myriad online services now a core element of every type of
economic activity, interruption of communications service deprives
individuals and enterprises of the ability to participate in the
modern economy, with significant financial impact even if an
interruption is of short duration.

(c) Interruption of communications service threatens public
safety by depriving persons of the ability to call 911 and
communicate with family, friends, employers, schools, and others
in an emergency; deprives persons of the ability to receive wireless
emergency alerts; and impairs the ability of first responders to
communicate with each other.

(d) The right of citizens to freedom of speech under the First
Amendment to the United States Constitution and Section 2 of
Article I of the California Constitution extends to speech through
any technology, from the pamphlets and newspapers of the
Founding Fathers to the emails, blogs, tweets, and texts of modern
day citizens using wireless devices.

(e) The power of new wireless devices and technologies for
participation in democracy underscores the need to protect First
Amendment rights and ensure that California and the United States
do not take the path of oppressive governments around the world
that routinely shut down the Internet and wireless networks to
silence public protest.

(f) Interruption of communications service by a begin delete government end delete
begin insert governmental end insert entity that prevents citizens from communicating
can be a “prior restraint” on speech, which the United States
Supreme Court has held bears a heavy presumption of
unconstitutionality and is justified only in exceptional
circumstances.

(g) The California Supreme Court, in Sokol v. Public Utilities
Commission (1966) 65 Cal.2d 247, 265, articulated the standard
that any future commission rule for discontinuation of telephone
services used for illegal purposes must at a minimum require that
police obtain prior authorization to secure the termination of service
by satisfying an impartial tribunal that they have probable cause
to act, in a manner reasonably comparable to a proceeding before
a magistrate to obtain a search warrant.

(h) In August 2011, the Bay Area Rapid Transit District (BART)
shut down wireless service for three hours in order to quash a
public protest relating to a fatal shooting by BART police on a
train platform.

(i) In December 2011, BART adopted a policy authorizing
wireless service shutdowns with no court review and no probable
cause requirement, which prompted a public inquiry by the Federal
Communications Commission.

(j) With more than 85 percent of American adults owning a
wireless device, and use of wireless services and platforms
expanding every day, protecting these services from interruption
is more important than ever in order to protect commerce, public
safety, and First Amendment freedoms that are the core of
democracy.

SEC. 2.  

Section 7908 is added to the Public Utilities Code, to
read:

7908.  

(a) For purposes of this section, the following terms
have the following meanings:

(1) “Communications service” means any communications
service that interconnects with the public switched telephone
network and is required by the Federal Communications
Commission to provide customers with 911 access to emergency
services.

(2) “Governmental entity” means every local government,
including a city, county, city and county, a transit, joint powers,
special, or other district, the state, and every agency, department,
commission, board, bureau, or other political subdivision of the
state, or any authorized agent thereof.

(3)  begin insert (A) end insert begin insert   end insert “Interrupt communications service” means to knowingly
or intentionally suspend, disconnect, interrupt, or disrupt
communications service to one or more particular customers or
all customers in a geographical area. begin delete “Interrupt end delete

begin insert ( end insert begin insert B) end insert begin insert   end insert begin insert “Interrupt end insert communications service” does not include any
interruption of begin insert communications end insert service pursuant to a customer
service agreement, a contract, a tariff, a provider’s internal practices
to protect the security of its networks, Section 2876, 5322, or
5371.6 of this code, Section 149 or 7099.10 of the Business and
Professions Code, begin insert or Section 4575 or end insert subdivision (d) of Section
4576 of the Penal begin delete Code, or an end delete begin insert Code. end insert

begin insert ( end insert begin insert C) end insert begin insert   end insert begin insert “Interrupt communications service” does not include any
interruption of service pursuant to an end insert order to cut, reroute, or divert
a begin delete landline being used for end delete telephone begin insert line or wireless device used
or available for use for end insert communication by a person begin insert or persons end insert in
a hostage or barricade situation pursuant to Section 7907. begin insert However,
“interruption of communications service” includes any interruption
of service resulting from an order pursuant to Section 7907 that
affects wireless devices other than those used by, or available for
use by, the person or persons involved in a hostage or barricade
situation. end insert

(4) “Judicial officer” means a magistrate, judge, justice,
commissioner, referee, or any person appointed by a court to serve
in one of these capacities of any state or federal court located in
this state.

(b) (1) Unless authorized pursuant to subdivision (c), no
governmental entity and no provider of communications service,
acting at the request of a governmental entity, shall interrupt
communications service for the purpose of protecting public safety
or preventing the use of communications service for an illegal
purpose, except pursuant to an order signed by a judicial officer
obtained prior to the interruption. The order shall include all of
the following findings:

(A) That probable cause exists that the service is being or will
be used for an unlawful purpose or to assist in a violation of the
law.

(B) That absent immediate and summary action to interrupt
communications service, serious, direct, and immediate danger to
public safety, health, or welfare will result.

(C) That the interruption of communications service is narrowly
tailored to prevent unlawful infringement of speech that is protected
by the First Amendment to the United States Constitution or
Section 2 of Article I of the California Constitution, or a violation
of any other rights under federal or state law.

(2) The order shall clearly describe the specific communications
service to be interrupted with sufficient detail as to customer, cell
sector, central office, or geographical area affected, shall be
narrowly tailored to the specific circumstances under which the
order is made, and shall not interfere with more communication
than is necessary to achieve the purposes of the order.

(3) The order shall authorize an interruption of begin insert end insert begin insert communications end insert
service only for as long as is reasonably necessary and shall require
that the interruption cease once the danger that justified the
interruption is abated and shall specify a process to immediately
serve notice on the communications service provider to cease the
interruption.

(c) (1) Communications service shall not be interrupted without
a court order except pursuant to this subdivision.

(2) If a governmental entity reasonably determines that an
extreme emergency situation exists that involves immediate danger
of death begin insert or great bodily injury end insert and there is insufficient time, with
due diligence, to first obtain a court order, then the governmental
entity may interrupt communications service without first obtaining
a court order as required by this section, provided that the
interruption meets the grounds for issuance of a court order
pursuant to subdivision (b) and that the begin insert governmental end insert entity does
all of the following:

(A)  begin delete Apply end delete begin insert (i) end insert begin insert   end insert begin insert Applies end insert for a court order without delay, begin delete and in
no event later than two end delete begin insert but within six end insert hours after commencement
of an interruption of communications service begin insert except as provided
in clause (ii) end insert .

begin insert (ii) end insert begin insert   end insert begin insert If it is not possible to apply for a court order within six hours
due to an emergency, the governmental entity shall apply for an
order as soon as possible, but in no event later than 24 hours after
commencement of an interruption of communications service. If
an application is filed more than six hours after commencement
of an interruption of communications service pursuant to this
clause, the application shall include a declaration under penalty
of perjury stating the reason or reasons that the application was
not submitted within six hours after commencement of the
interruption of communications service. end insert

(B)  begin delete Provide end delete begin insert Provides end insert to the provider of communications service
involved in the service interruption begin insert and the court end insert a statement of
intent to apply for a court order signed by an authorized official
of the governmental entity. The statement of intent shall clearly
describe the extreme emergency circumstances, and the specific
communications service to be interrupted with sufficient detail as
to the customer, cell sector, central office, or geographical area
affected.

(C)  begin delete Provide end delete begin insert Provides end insert conspicuous notice of the application for
a court order authorizing the communications service interruption
on its Internet Web site without delay, unless the circumstances
that justify an interruption of communications service without first
obtaining a court order justify not providing the notice.

(d) An order to interrupt communications service, or a signed
statement of intent provided pursuant to subdivision (c), that falls
within the federal Emergency Wireless Protocol shall be served
on the California Emergency Management Agency. All other orders
to interrupt communications service or statements of intent shall
be served on the communications service provider’s contact for
receiving requests from law enforcement, including receipt of and
responding to state or federal warrants, orders, or subpoenas.

(e) A provider of communications service that intentionally
interrupts communications service pursuant to this section shall
comply with any rule or notification requirement of the commission
or Federal Communications Commission, or both, and any other
applicable provision or requirement of state or federal law.

(f) Good faith reliance by a communications service provider
upon an order of a judicial officer authorizing the interruption of
communications service pursuant to subdivision (b), or upon a
signed statement of intent to apply for a court order that the
begin delete government end delete begin insert governmental entity end insert asserts meets the requirements
of subdivision (c), shall constitute a complete defense for any
communications service provider against any action brought as a
result of the interruption of communications service as directed
by that order or statement.

(g) The Legislature finds and declares that ensuring that
California users of any communications service not have that
service interrupted, and thereby be deprived of 911 access to
emergency services or a means to engage in constitutionally
protected expression, is a matter of statewide concern and not a
municipal affair, as that term is used in Section 5 of Article XI of
the California Constitution.

(h) This section shall remain in effect only until January 1, begin delete 2016 end delete
begin insert 2020 end insert , and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, begin delete 2016, end delete begin insert 2020, end insert deletes or extends
that date.

begin delete

SEC. 3.  

Section 7908 is added to the Public Utilities Code, to
read:

7908.  

(a) For purposes of this section, the following terms
have the following meanings:

(1) “Communications service” means any communications
service that interconnects with the public switched telephone
network and is required by the Federal Communications
Commission to provide customers with 911 access to emergency
services.

(2) “Governmental entity” means every local government,
including a city, county, city and county, a transit, joint powers,
special, or other district, the state, and every agency, department,
commission, board, bureau, or other political subdivision of the
state, or any authorized agent thereof.

(3) “Interrupt communications service” means to knowingly or
intentionally suspend, disconnect, interrupt, or disrupt
communications service to one or more particular customers or
all customers in a geographical area. “Interrupt communications
service” does not include any interruption of service pursuant to
a customer service agreement, a contract, a tariff, a provider’s
internal practices to protect the security of its networks, Section
2876, 5322, or 5371.6 of this code, Section 149 or 7099.10 of the
Business and Professions Code, subdivision (d) of Section 4576
of the Penal Code, or an order to cut, reroute, or divert a landline
being used for telephone communication by a person in a hostage
or barricade situation pursuant to Section 7907.

(4) “Judicial officer” means a magistrate, judge, justice,
commissioner, referee, or any person appointed by a court to serve
in one of these capacities of any state or federal court located in
this state.

(b) (1) No governmental entity and no provider of
communications service, acting at the request of a governmental
entity, shall interrupt communications service for the purpose of
protecting public safety or preventing the use of communications
service for an illegal purpose, except pursuant to an order signed
by a judicial officer obtained prior to the interruption. The order
shall include all of the following findings:

(A) That probable cause exists that the service is being or will
be used for an unlawful purpose or to assist in a violation of the
law.

(B) That absent immediate and summary action to interrupt
communications service, serious, direct, and immediate danger to
public safety, health, or welfare will result.

(C) That the interruption of communications service is narrowly
tailored to prevent unlawful infringement of speech that is protected
by the First Amendment to the United States Constitution or
Section 2 of Article I of the California Constitution, or a violation
of any other rights under federal or state law.

(2) The order shall clearly describe the specific communications
service to be interrupted with sufficient detail as to customer, cell
sector, central office, or geographical area affected, shall be
narrowly tailored to the specific circumstances under which the
order is made, and shall not interfere with more communication
than is necessary to achieve the purposes of the order.

(3) The order shall authorize an interruption of service only for
as long as is reasonably necessary and shall require that the
interruption cease once the danger that justified the interruption
is abated and shall specify a process to immediately serve notice
on the communications service provider to cease the interruption.

(c) An order to interrupt communications service that falls within
the federal Emergency Wireless Protocol shall be served on the
California Emergency Management Agency. All other orders to
interrupt communications service or statements of intent shall be
served on the communications service provider’s contact for
receiving requests from law enforcement, including receipt of and
responding to state or federal warrants, orders, or subpoenas.

(d) A provider of communications service that intentionally
interrupts communications service pursuant to this section shall
comply with any rule or notification requirement of the commission
or Federal Communications Commission, or both, and any other
applicable provision or requirement of state or federal law.

(e) Good faith reliance by a communications service provider
upon an order of a judicial officer authorizing the interruption of
communications service pursuant to subdivision (b) shall constitute
a complete defense for any communications service provider
against any action brought as a result of the interruption of
communications service as directed by that order or statement.

(f) The Legislature finds and declares that ensuring that
California users of any communications service not have that
service interrupted, and thereby be deprived of 911 access to
emergency services or a means to engage in constitutionally
protected expression, is a matter of statewide concern and not a
municipal affair, as that term is used in Section 5 of Article XI of
the California Constitution.

(g) This section shall become operative on January 1, 2016.

end delete

begin insert

begin insert SEC. 3. end insert   

end insert begin insert

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

end insert